The charge of grooming a child (intending to make it easier to procure a child to engage in sexual activity outside Australia (whether or not that activity is with the person doing the grooming or someone else)) is a serious offence.
Public policy commands that specialist police teams investigate constantly in the area and allegations are thoroughly prosecuted.
The Offence Of Grooming
Grooming a child to engage in sexual activity outside Australia is a Commonwealth offence and is found at Section 272.15 of the Commonwealth Criminal Code.
The maximum penalty for grooming is imprisonment for 12 years.
What Actions Might Constitute Grooming?
Grooming is typically considered to be any behaviour that an adult individual commits with the intention of making it easier to procure a child under the age of 16 for sexual activity, either with themselves or with another individual. In simple terms, grooming refers to behaviour that primes a child for sexual activity. A non-exhaustive list of examples of how the offence of grooming may be committed include:
- An adult who takes a particular interest in a child under the age of 16, or who they believe to be a child under the age of 16, with the intention of making that child feel special in order to form a bond for the purpose of encouraging that child to engage in sexual conduct with themselves or another person;
- Sexualising a bond with a child under the age of 16, or who they believe to be a child under the age of 16, by encouraging romantic feelings of the child towards the individual;
- An adult individual who exposes a child under the age of 16, or who they believe to be a child under the age of 16, to sexual concepts, for example by sharing intimate details of their sex life with the child;
- An adult individual inviting a child under the age of 16, or who they believe to be a child under the age of 16, to engage in sexual conduct with either themselves or another person, even if sexual conduct does not eventuate;
- An adult individual sending explicit images to a child under the age of 16, or who they believe to be a child under the age of 16, via the internet, text messages or through postal services.
It is increasingly more common for these offences to be committed via the internet, as well as through text messages. However, grooming offence may also be committed by attending venues likely to attract children, such as shopping centres, schools, movies etc.
It can be contact via chat rooms or other electronic means and can involve people purporting to be children themselves. There does not have to be physical contact for the offence to be made out.
The Criminal Code talks of grooming being conduct undertaken with the intention of making it easier to procure the child to engage in sexual activity. (See “What the Police must prove” below)
“Conduct” is very broadly defined in the Criminal Code. It means three things:
- An act.
- An omission to perform an act.
- A state of affairs.
“Engage in conduct” means:
- Do an act; or
- Omit to perform an act.
What The Police Must Prove
The offence of grooming is made out if the Court finds that:
- A person engaged in conduct in relation to another person (the child); and
- The person did so with the intention of making it easier to procure the child to engage in sexual activity (whether or not with the person) outside Australia; and
- The child was someone:
- Who was under 16; or
- Who the person believed to be under 16; and
- One or more of the following apply:
- The conduct referred to in paragraph (a) occurred wholly or partly outside Australia;
- The child was outside Australia when the conduct referred to in paragraph (a) occurred;
- The conduct referred to in paragraph (a) occurred wholly in Australia and the child was in Australia when that conduct occurs.
A person may be found guilty even if it is impossible for the sexual activity referred to have taken place. Further, it does not matter that the child is a fictitious person represented to the person as a real person.
Will I Get A Criminal Record From A Grooming Charge?
While it is theoretically possible to achieve a non-conviction order for any matter on the criminal calendar, it is most unlikely that one could be obtained for grooming, given the seriousness of the offence, as shown by the maximum penalty provided by Parliament.
Possible Defences For A Grooming Charge
It is a defence if the defendant proves that, at the time the defendant engaged in the conduct constituting the offence, he or she believed that the child was at least 16.
It should be noted that the defendant bears a legal burden in relation to this, meaning that the defendant must prove that belief to the Court’s satisfaction on the balance of probabilities. This is different to the general onus and standard of proof in a criminal trial, which is that the Prosecution must prove each and every element of any offence beyond a reasonable doubt. The change of the burden of proof applies only to that isolated issue.
In determining whether the defendant had the requisite belief, the Court may take into account whether the alleged belief was reasonable in the circumstances.
A further defence is available if the defendant proves that:
- At the time he or she committed the offence, there existed between the defendant and the child a marriage that was valid, or recognised as valid, under the law of:
- The place where the marriage was solemnised; or
- The place where the offence was committed; or
- The place of the defendant’s residence or domicile; and
- When it was solemnised, the marriage was genuine.
Again, the defendant bears a legal burden in relation to proving the existence of the marriage.
Which Court Will Hear Your Matter?
As the offence carries a maximum penalty of more than 10 years in prison, it is “strictly indictable”, meaning it will be decided in the ACT Supreme Court. However, when originally charged, defendants have to appear initially in the ACT Magistrates Court, which commits them to the higher court for trial.
If you require legal advice or representation in any legal matter, please contact Armstrong Legal.